Citation Nr: 0026706
Decision Date: 10/05/00 Archive Date: 10/12/00
DOCKET NO. 95-30 047 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder (PTSD) (previously diagnosed as bipolar disorder),
currently rated 50 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William L. Pine, Counsel
INTRODUCTION
The appellant had active service from February 1974 to
January 1977.
This appeal is from February 1995 and subsequent rating
decisions of the St. Petersburg, Florida, Regional Office
(RO). The February 1995 rating denied an increase from 30
percent for "bipolar disorder." A May 1998 rating decision
increased the 30 percent rating to 50 percent, effective
January 10, 1998, and added "with PTSD" to the rating
nomenclature. In its October 1999 remand decision, the Board
of Veterans' Appeals (Board) stated two issues, increased
rating in excess of 30 percent for bipolar disorder prior to
January 10, 1998, and increased rating for bipolar disorder
with PTSD from January 10, 1998, currently rated 50 percent.
While on remand, the RO increased the rating to 50 percent
throughout the period under review. The Board has identified
the issue as an appeal from a 50 percent rating. The
disability is named consistent with the regulation that
requires that the citation of disabilities on rating sheets
will be that of the medical examiner. 38 C.F.R. § 4.27
(1999).
FINDINGS OF FACT
1. Prior to November 7, 1996, the veteran's PTSD was
manifested by symptoms resulting in no more than considerable
industrial impairment under the regulatory criteria then in
effect.
2. Subsequent to November 7, 1996, the veteran's PTSD was
manifested by impaired judgment, disturbances of motivation
and mood, and difficulty maintaining effective work
relationships.
CONCLUSION OF LAW
The schedular criteria for a disability rating in excess of
50 percent for post-traumatic stress disorder are not been
met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §
4.132, Diagnostic Code 9411 (1996); 38 C.F.R. § 4.130,
Diagnostic Code 9411 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran seeks compensation at a higher rate for PTSD.
The Board has reviewed the evidence in the veteran's VA
claims folder. In this decision, the Board summarizes the
pertinent historical evidence sufficiently to permit the
disability to be understood in relation to its history, with
the primary focus on the current level of disability. The
Board then applies the pertinent laws and regulations to the
evidence to determine whether the disability should be rated
higher than it is now.
I. Factual Background
Service medical records reveal the veteran reported obtaining
mental health treatment prior to enlistment. A service
psychiatrist found her without mental illness or psychiatric
diagnosis at the time of entrance into service. During
service, she obtained mental health care in a day treatment
program, and lithium treatment was noted on separation.
The veteran had a VA psychiatric examination in February
1978, at which time she gave a history of rape by a
noncommissioned officer and a subsequent trial in which the
accused was acquitted, which she reported as traumatic to
her. The examiner noted the veteran began VA psychotherapy
and lithium therapy in July 1977. The examiner diagnosed
psychoneurosis, depressive reaction, moderately severe, with
anxiety.
The veteran was hospitalized in March 1978 at Crozer-Chester
Medical Center with a diagnosis of depression in a borderline
personality. She has had numerous diagnoses over the years,
with manic-depressive or bipolar disorder the predominant
diagnosis since a VA examination of April 1979. A private
physician who saw the veteran for VA on a fee basis from
March 1978 until approximately April 1981 diagnosed bipolar
disorder and borderline personality. The diagnosis of
bipolar disorder was maintained through VA examinations of
October 1981, November 1986, April 1988, and May 1990.
The veteran sought VA hospitalization in August 1992 because
of increased depression related to her domestic situation and
an increase in suicidal thoughts. She reported that her last
episode of depression had been about 10 years previously.
She also reported episodes of mania characterized by spending
money nearly to bankruptcy, lack of sleep and euphoria. She
sought discharge after 24 hours, because she was
uncomfortable in the busy ward. It was felt her suicidal
thoughts had abated, and she was discharged upon her denial
of any suicidal intent. The diagnosis was adjustment
disorder, rule out bipolar disorder.
A June 1994 psychiatric report by A. Carreno, M.D., noted a
history of PTSD as well as depression. The doctor took
history from the veteran that included periods of lost memory
in the past, and of current hypnagogic sensation upon falling
asleep. The doctor took a report of the veteran's current
symptoms; and, after performing a mental status examination,
opined she should have an electroencephalogram to rule out
organicity in her memory blanks and hypnagogic sensations.
He advised continuing psychotherapy for crisis stabilization,
and a trial of mood stabilizers.
On VA examination in November 1994, the examiner reported the
veteran had been under psychiatric treatment for several
years. The veteran complained that she had manic depression.
The examiner summarized the veteran's history as she reported
it. The veteran reported severe episodes of depression
lasting several weeks at least once a year, which caused her
to lose many days from work. She expressed doubt about her
diagnosis of bipolar disorder, feeling she was mostly
depressed. She admitted past episodes of irritability,
talkativeness, and impulsivity. Her greatest concern
recently had been "anxiety attacks," which she recognized
as usually a sign of impending depression. She also reported
vague symptoms of PTSD and a history of severe trauma in the
past. She reported obtaining her LCSW (licensed clinical
social worker) credentials in 1993 and currently working as a
social worker counseling families of child abuse. She
reported currently doing very well at work, but occasionally
missing days because of depression. The diagnosis was
bipolar disorder, depressed, not otherwise specified, with a
global assessment of functioning (GAF) of 65 currently and 70
for the past year.
VA outpatient treatment records from December 1993 to May
1995 include records of mental health treatment and
medication management, and of treatment for urologic,
gynecologic and orthopedic conditions. Mental health records
show she obtained a license as a clinical social worker in
December 1993. Treatment issues included increases in
anxiety from February and September 1994 relating to career
development and decreased depression. In October 1994 she
was calmer, having finished an overdue report at work; her
mood was euthymic. Medicine helped with insomnia. In
January 1995, she had a good mood. In April 1995, she
reported increased stress related to medical problems of
herself and her husband. In May 1995, she was in a good
mood, although disappointed about her regular therapist
leaving the Vet Center where she was in treatment.
A May 1995 letter from the Vet Center reported that the
veteran had been in treatment there since May 1994 for PTSD
secondary to sexual trauma while on active military duty.
Her presenting symptoms were depression, anxiety, intrusive
recollections, and difficulty with interpersonal relations,
especially with men. Because of the severity of her
symptoms, she had been referred to a VA mental hygiene clinic
for antidepressive medication.
In a June 1995 statement, the veteran reported that her
medication was increased in May 1995 due to increased
depressive symptoms. She reported that she often cried and
had feelings of hopelessness and despair and was often unable
to function. She reported two months lost from work in 1994
and four weeks thus far in 1995, and that when she worked,
her work performance was poor. She reported fear of losing
her job because of a currently late report that she could not
complete because she could not concentrate, and she felt
listless and lethargic. She reported poor sleep and suicidal
thought, but she denied suicidal intent because she could not
do that to her children. She stated she failed to understand
how VA could say her condition was "no worse" when her
current functioning was so much worse than in the past, when
she could make goals and achieve them.
The veteran testified at a VA hearing in February 1996. She
reported her last hospitalization in 1993 for only 24 hours
because she was uncomfortable around the other veterans in
the ward. She reported her current mental health regime,
which included medication and psychotherapy several times a
week including a VA outpatient women's group and therapy at a
Vet Center. She reported having intrusive, photographic
memories of her rape at least weekly, which made her feel
angry, depressed, agitated, restless, confused, and
disoriented. She said the symptoms increased with any
interpersonal confrontation. She attributed a three-year
exacerbation of depression from about December 1992 to just
several months ago to an undesired interaction with the
father of one of her sons related to the child's custody.
She described panic attacks while driving that required her
to pull off the road for about 10 minutes. She reported
often feeling panic while falling asleep. She reported that
she slept poorly, with trouble falling asleep and with early
awakening when depressed, although she was not experiencing
those symptoms presently. She reported sleeping about six to
six and a half-hours a night. She said she painted and wrote
for relaxation.
Regarding her social interactions, the veteran said she was
very sociable about superficial things, but she was not
intimate with anyone. She said she had no friends, and her
relationship with her husband was not good now.
She testified that she had a master's degree in social work
and was employed by the Child Abuse Council for the state,
and had held the job since 1990. She stated she felt no
panic or depression while actually on the job making home
visits, because her role was clearly defined, but social
relations were difficult because of the uncertainty involved.
She said she had taken six consecutive weeks off of work in
1995 while not functioning because of depression, and
cumulatively three months off in 1994. She said her boss
understood, and the absence was allowed because it was part
of a "collaborative agreement." She said during these
episodes, she did not leave the house except for doctor's
appointments. She said that although not currently
depressed, she feared recurrence of depression.
The Board of Veterans' Appeals remanded the veteran's case to
the RO in July 1997, in part to assist her to obtain
corroboration from her employers of the extent to which her
service-connected psychiatric disorder caused her to lose
time from work. In a November 1997 letter, the RO requested
the veteran to provide statements from her employment
supervisors at any place of employment from which she had
taken time from 1992 to the present due to her service-
connected psychiatric disorder, and to authorize the release
of information from any health care provider who had treated
her from May 1995 to the present. She returned a copy of a
letter from her to her employer and from her attorney to her
employer. She also returned signed authorization for release
of information from a Vet Center.
In a November 1997 letter from the veteran to her employer,
she requested revision of her work schedule and accommodation
of her need for regular attendance at medical appointments
and physical therapy. She noted that she had previously
advised her employer of the potential for a leave of absence,
but that she did not need such leave if her scheduling needs
could be accommodated. She stated that upon request, she
could produce a physician's statement that her conditions and
treatments were necessary and in no way impeded her
performance of her work.
In a November 1997 letter from the veteran's attorney to the
general counsel for the same employer, the attorney noted the
veteran's employment since March 1996 as a family therapist.
The letter addressed issues between the veteran and her
employer regarding interference by management in her
discharge of professional obligations toward her clients
pertaining to the Baker Act. The veteran also complained of
her employer's failure to permit flexibility in her work
schedule to obtain medical treatment. The letter also
addressed contractual issues. The attorney characterized the
relationship between the veteran and her employer as
untenable and proposed severance terms.
In a January 1998 statement, the veteran reported that her
life had unraveled in the past five years due to the effect
of memories of childhood sexual abuse and rape while in the
service. She reported divorcing her husband of 18 years,
with her family then siding against her. She reported her
ability to work had been impaired due as much to poor
judgment as to depression. She stated she changed jobs in
1996 to avoid being fired for excess absenteeism in 1994 and
1995, and that last year she had been fired by her subsequent
employer. She referenced the letter from her attorney
submitted previously. She opined that she felt she had
demonstrated poor judgment in not obtaining another job and
then quitting, rather than being fired. She reported that
she did not trust her ability to care for herself; she
reported never before feeling such fear, helplessness, and
lack of control.
With her January 1998 statement, the veteran submitted an
annual/sick leave report. Nothing on the report showed its
origin. It showed 127.5 hours (17 days) sick leave used for
calendar year 1995, with a negative leave balance at the end
of the year. It did not show any reason for the sick leave.
The veteran had a VA examination in January 1998. The
examiner reported that he made a longitudinal review of the
veteran's records. The veteran stated her objective in the
examination was to obtain a change of diagnosis from bipolar
disorder to PTSD. The veteran specifically denied any
history of spending sprees, grandiose mood, expanded mood, or
decreased need for sleep. She described occasional sleep
disturbances, which she characterized as depression. She
reported that during these episodes, she had very low energy,
became suicidal, and could not care for herself. She
identified the rape in service as the cause of her
psychiatric problems, and that she had daily intrusive
memories of the incident, that she feared large men and was
afraid of situations and avoided situations that reminded her
of the rape. She described a sense of foreshortened future.
The veteran reported that she continued to live alone and had
gotten divorced a year ago. She was currently awaiting an
unemployment check and was living on her savings. She
reported that she had lost her last job as a licensed
clinical social worker the previous month because she had
participated in "Baker Acting" a citizen of the Seminole
Indian Tribe.
On mental status examination, she was well dressed and well
groomed. Her affect was quite labile during the interview,
ranging from elated to tearful. Her speech was of normal
rate and tone and was goal-directed. Her thoughts were
cohesive, and without psychotic, manic or obsessive content.
Her memory was intact for remote and recent events, and she
had good concentration. Her insight was fair and her
judgment was not impaired. She denied suicidal and homicidal
ideation.
The examiner opined that the veteran's medical history was
confusing. He deferred making a final diagnosis until the
veteran had psychological testing. His provisional diagnosis
was PTSD and bipolar disorder. A current psychosocial and
environmental problem was unemployment, and GAF was 50.
The veteran had psychological testing in February 1998.
Based on clinical interview and administration of Minnesota
Multiphasic Personality Inventory 2, the examiner found a
history of childhood rape and incest with aggravation of that
trauma by a rape while in the service. The veteran had
symptoms of increased arousal, persistent re-experiencing and
persistent avoidance of stimuli reminiscent of the past
traumas, suggestive of PTSD. At the time of testing, the
veteran was competent, did not demonstrate any impairment in
thought process, delusions, or hallucinations. She did
identify earlier suicidal gestures. At the time of testing,
there was no evidence of a cyclical mood pattern to confirm a
diagnosis of bipolar disorder. The examiner noted a history
of two hospital admissions, once for depression and once for
one day. The examiner noted the veteran to be unemployed.
The diagnosis was PTSD. Psychosocial and environmental
factors were noted as interpersonal and unemployment. GAF
was noted as 55. On review of the psychological testing
report, the January 1998 examiner concurred in the findings
and stated the final diagnosis as PTSD, unemployment as the
reported psychosocial and environmental factor, with GAF of
50 to 55.
In October 1999, a counselor at the Vet Center reported the
veteran had received treatment approximately bi-weekly since
May 1994. The veteran was said to continue to present with
depression, anxiety, low self-esteem, isolation, poor anger
control, psychic numbing, personal relationship problems and
avoidance of stimuli. The counselor gave her a poor
prognosis for rejoining mainstream society.
The veteran had a VA examination in January 2000. The
examiner reported that he reviewed the veteran's VA claims
folder. The examiner noted past diagnosis of bipolar
disorder and that the veteran adamantly denied past manic
episodes. She reported a significant history of depression,
which she attributed to incest from age five to 12 and a
subsequent rape in the service. The examiner quoted her as
admitting to "acute episodes of system overload" in which
she disassociated because of her strong emotions related to
the rape, most recently just before last Christmas, when she
was completely shut down and completely unable to function.
She reported she had one of these in 1994, which is when she
was diagnosed with bipolar disorder.
Current complaints included consistent nightmares of the rape
in service. She reported that she tried to avoid all
thoughts and feelings associated with the rape as well as any
activity or situation that might make her recall the event.
She reported feeling detached and estranged from others as
well as a sense of foreshortened future. She described
increased arousal in the form of difficulty sleeping,
irritability, and difficulty concentrating. She reported
exaggerated startle response and occasional hypervigilence.
She denied psychotic, manic or obsessive-compulsive
symptomatology.
As psychiatric history, the veteran reported her first
therapy at age 18 for depression. She reported five
hospitalizations, last in 1994 when she had suicidal ideation
and considered overdosing. Regarding social history, the
veteran reported living alone. She reported two divorces,
two adult children, and current employment as a LCSW, working
for the Child Abuse Council for the past 10 years. She
denied any alcohol or drug abuse.
On mental status examination, the veteran was cooperative
with good eye contact. There was no psychomotor agitation or
retardation. Her speech was appropriate in rate and volume,
and it was goal directed. Her mood was anxious and
depressed, and her affect was congruent with her mood. She
denied and did not demonstrate any form of thought disorder.
Her insight and judgment were fair. Her memory and
concentration were intact. She denied suicidal or homicidal
ideation. The impression was that the veteran had
nightmares, avoidance, and hyperarousal consistent with PTSD.
The examiner found there were no past symptoms consistent
with bipolar disorder, and that PTSD had caused moderate to
severe social and occupational distress. The diagnosis was
PTSD. Psychosocial and environmental factors were poor
social support and stressful employment. The GAF was 60.
Subsequently, upon review of a February 2000 report of
psychological testing, the examiner concurred in the testing
psychologist's diagnosis of PTSD and GAF of 55.
The veteran had psychological testing again in February 2000,
revealing an individual who was somewhat emotional, angry and
distrustful of others. The examiner summarized the veteran's
history of childhood and in-service sexual abuse. The
examiner noted the veteran to have some trouble in social
relationships, with two divorces, the first from a physically
abusive husband. He found that the veteran had demonstrated
stability in employment, and was currently a social work
professional with child protective services. At the time of
testing, the veteran was alert, oriented in all spheres, and
competent for VA purposes. She denied any impairment in
thought process or communication. She denied delusions,
hallucinations, or inappropriate behavior. She did endorse
suicidal ideation in the past, but at present denied ideas,
plan, or intent. She was able to maintain activities of
daily living and did not demonstrate any memory loss,
ritualistic behavior, or panic attacks. She endorsed
persistent symptoms of increased arousal, persistent re-
experiencing of trauma, or persistent avoidance of stimuli
associated with trauma. The diagnosis was PTSD secondary to
sexual trauma. The diagnosed psychosocial and environmental
factor was interpersonal [relations]. The GAF was 55.
In March 2000, the Vet Center furnished the veteran's
treatment records for May 1994 to February 2000. The notes
are of approximately bi-weekly psychotherapy sessions. They
show episodic increases and decreases in depression related
to interfamilial conflicts, separation and divorce from her
second husband, death of her mother, conflicts with family
members and conflicts with employers. The records show two
or three periods of relationships with significant others.
From August to September 1996, she dealt with issues related
to breakup with her husband and stress at work. She left her
job and started another; her depression decreased; she stared
a new intimate relationship; her sleep improved. She had
recurrence of old memories in November 1996 after watching a
television program about rape in the military, and in
December 1996, called an 800 number to report the rape she
had suffered in the service, which began several months of
interviews with military authorities, which she apparently
handled well.
From March 1997 until November 1997, she reported variously
increasingly and decreasingly strained relationships with her
employer related to ethical issues at work. In October 1997,
she reported possibly being laid off at work due to budget
cuts. In December 1997, she took administrative leave with
pay resulting ultimately in severance. During this time, she
had increases and decreases in depressive symptoms also
related to termination of a relationship with her significant
other.
In January 1998, she began a relationship with a new
significant other and was noted to be coming out of
depression and making better decisions. An increase in
depressive symptoms coincided with the terminal cancer
diagnosis of her grandmother. In February 1998, the veteran
began a new job and reported a decrease in intrusive thoughts
of her rape. In April 1998, she reported problems with her
employer and with her roommate leading to decreased control
of anger. She also reported decrease in self-esteem and
exacerbation of her symptoms by current stress. In July
1998, she reported increased stress and intrusive thoughts
coincident with an employee under her supervision make equal
employment opportunity charges against her; she reported
feeling increasing rage. In July 1998, she reported
achieving a change in perspective and reduced stress and
symptoms. In September 1998, she reported a breakup with her
significant other, an equal employment opportunity lawsuit
against her, and feeling helpless.
In January 1999, she reported decreased severity of symptoms
and increased satisfaction in her job and personal life, and
that she was making better decisions. In May 1999, she
reported increased nightmares and depression after learning
of the death of a friend. However, she was getting along
better and getting positive reaction at work since her
antagonist had left. In July 1999, she reported increased
symptoms of depression. In October 1999, she reported
increased then decreased tension at work and that she was
recovering from depression. In November and December 1999,
she reported increasing depression, social isolation, and
ideas of suicide without any plan for suicide.
In January and February 2000, the veteran reported a positive
holiday experience with both family and friends. She
reported renewed interest and energy. She reported problems
with the Council at work and issues of racism with her
significant other. She declined further counseling at that
time regarding sexual trauma in favor of addressing other
immediate issues. Her therapist noted she was able to set
boundaries, but had difficulty standing by them.
In a March 2000 statement in support of her claim, the
veteran reported that her pride impairs her judgment in ways
such as initially seeking only a change in diagnosis in her
current VA benefit claim rather than an increase in
compensation. She stated that since 1994, she had become
increasingly more impaired by recollections of her rape,
details of which she had not recalled prior to beginning
therapy. She reported great emotional pain and loneliness as
a result of therapeutic progress and of ending most of her
primary relationships, such as her marriage and relationships
with friends and family. She reported she could no longer
function as a therapist, and had consequently been assigned
administrative/supervisory responsibility. She reported
being accused of sexual harassment, and stated she could not
tolerate the stress of the job or continue in it. She
reported contemplating suicide during her last acute episode,
and she feared she would not survive the next episode. She
requested an increase in her disability benefits so she could
afford to do less stressful work.
II. Analysis
The appellant's allegation of increase in disability is
sufficient evidence to well ground the claim. Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992). VA has a duty to
assist a claimant with a well-grounded claim to develop the
facts pertinent to he claim. 38 U.S.C.A. § 5107(a) (West
1991). The veteran has reported loss of time from work and
loss of employment due to service-connected psychiatric
illness. She has argued that these disruptions in employment
are significant evidence of the extent of her disability.
When VA requested that she provide corroborating statements
from employers, she did not. She provided her statements to
an employer. She also provided a report of sick leave for
one of the approximately six years under review in this
appeal. "The duty to assist is not always a one-way street.
If a veteran wishes help, [s]he cannot passively wait for it
in those circumstances where [s]he may or should have
information that is essential in obtaining the putative
evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
VA has provided the veteran assistance to develop facts
pertinent to her claim, and has informed her of evidence
necessary to support her claim. VA's duty to assist the
veteran to develop the facts in her claim is discharged.
38 U.S.C.A. § 5107(a).
The veteran has also reported psychiatric hospitalization in
1994 to the January 2000 VA examiner, for which no records
are in the claims folder. She did not state where she had
been hospitalized. When, in July 1997, the RO asked her to
report all psychiatric treatment, she reported only the Vet
Center treatment. She filed her claim for increased
compensation in December 1994, yet from then until January
2000, she never mentioned December 1994 hospitalization, nor
does any reference to such hospitalization appear in the
extensive outpatient record encompassing December 1993 to
February 2000. VA treatment records are constructively
before the RO and the Board for adjudication purposes. Bell
v. Derwinski, 2 Vet. App. 611 (1992). Ordinarily, notice of
the existence of pertinent VA records would prompt the Board
to remand to the RO obtain them. The Board does not believe
the veteran was hospitalized in 1994 yet neglected to report
recent hospitalization at the time she filed her claim for
increased rating. Rather, the Board interprets the record of
1992 hospitalization, the testimony of last hospitalization
in 1993, and the report to the examiner of last
hospitalization in 1994 as inaccurate recollection of the
1992 hospitalization. The Board does not construe the
comment to the January 2000 VA examiner as notice of the
existence of VA records that should be obtained prior to
appellate review of this case.
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder.
38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes
identify the various disabilities. Id. Although the
evaluation of a service-connected disorder requires a review
of the veteran's entire medical history regarding that
disorder, the primary concern in a claim for an increased
evaluation for a service-connected disorder is the current
level of disability. See Francisco v. Brown, 7 Vet. App. 55,
58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991);
38 C.F.R. §§ 4.1 and 4.2 (1999). It is also necessary to
evaluate the disability from the point of view of the veteran
working or seeking work, 38 C.F.R. § 4.2 (1999), and to
resolve any reasonable doubt regarding the extent of the
disability in the veteran's favor. 38 C.F.R. § 4.3 (1999).
If there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
The rating criteria for mental illness have changed while the
veteran's claim has been pending. When a law or regulation
changes after a claim has been filed but before the
administrative appeal process has been concluded, VA must
apply the version that is more favorable to the veteran.
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
However, where the amended regulations expressly provide an
effective date and do not allow for retroactive application,
the veteran is not entitled to consideration of the amended
regulations prior to the established effective date. Green
v. Brown, 10 Vet. App. 111, 116-119 (1997); see also
38 U.S.C.A. § 5110(g) (West 1991) (where compensation is
awarded pursuant to any Act or administrative issue, the
effective date of such award or increase shall be fixed in
accordance with the facts found, but shall not be earlier
than the effective date of the Act or administrative issue).
Therefore, the Board must evaluate the veteran's claim for an
increased rating from the effective date of the new criteria
under both the old criteria in the VA Schedule for Rating
Disabilities and the current regulations in order to
ascertain which version is most favorable to the veteran, if
indeed one is more favorable than the other.
The changes in rating criteria for mental illness were
effective November 7, 1996. See 61 Fed. Reg. 52700 (1996).
The rating criteria for 100 percent to 50 percent ratings
preceding the change (old criteria) are as follows:
100 percent: The attitudes of all contacts except the most
intimate are so adversely affected as to result in virtual
isolation in the community. Totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior.
Demonstrably unable to obtain or retain employment. 70
percent: Ability to establish and maintain effective or
favorable relationships with people is severely impaired.
The psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. 50 percent: Ability to
establish or maintain effective or favorable relationships
with people is considerably impaired. By reason of
psychoneurotic symptoms the reliability, flexibility and
efficiency levels are so reduced as to result in considerable
industrial impairment.
38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
The revised (new) rating criteria are as follows:
100 percent evaluation requires total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. 70 percent rating is warranted for occupational
and social impairment, with deficiencies inmost areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. A 50 percent rating is warranted for
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory;
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
The VA examination reports in November 1994, January and
February 1998, and January and February 2000 do not show
symptoms or social or industrial impairment at or nearly
approximating the 70 percent level under the old rating
criteria. See 38 C.F.R. § 4.7. Under the old criteria, the
extensive outpatient records show clear difficulty in
maintaining social relationships, but they also show a
modicum of success, with repeated initiation of intimate
relationships of some months' duration. She also had
ongoing, if difficult, relationships with family members,
e.g., her sisters and children. Social inadaptability is
considered in rating mental disorders only as it affects
industrial adaptability, i.e., as it impairs earning
capacity. 38 C.F.R. § 4.129 (1996).
As the psychologist who examined the veteran after reviewing
her records in February 2000 noted, she has had substantially
continuous employment. The record is entirely inconsistent
as to whether her employment has been with one employer or
multiple employers. The veteran's failure to provide
documentation from her employers as requested has not
assisted in this regard, nor have her inconsistent statements
and testimony. Mental health treatment records show that she
reported obtaining a license as a clinical social worker in
December 1993. In February 1996, she said that she had been
employed by the Child Abuse Council since 1990 as a social
worker. In January 1998 she reported that she had changed
jobs in 1996 and had been fired by her subsequent employer in
1997. On psychological testing in February 1998, she
reported that she was unemployed. On VA examination in
January 2000, she reported that she had been employed for the
last 10 years (i.e., since 1990) by the Child Abuse Council.
Vet Center treatment notes confirm her termination of
employment in December 1997, although she reported first that
budget cuts were responsible, and later that she took
administrative leave and was ultimately severed from
employment. Vet Center notes also show that she reported
starting a new job in February 1998.
The inconsistency in the veteran's reported work history, as
reflected in her statements and treatment records damages her
credibility. What is apparent is that she has had a
substantially continuous employment record (with a break of
possibly two months in early 1998) in a professional field
for which she obtained an advanced degree and met licensing
requirements. There is clearly not severe impairment of her
ability to obtain or retain employment. To the contrary, the
record evidences considerable facility at obtaining and
maintaining employment and that she has held positions for
more than a year. The GAF on repeated examination was in the
50 to 60 range, with 55 as the GAF in the majority of
examinations. A GAF of 60 is noted when there are moderate
symptoms or moderate difficulty in social, occupational, or
school functioning (i.e., few friends, conflicts with peers
or co-workers). Quick Reference to the DSM III R 22-23
(1987). A GAF of 50 is noted when there are serious symptoms
(e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job). Id. The Diagnostic and Statistical Manual of
Mental Disorders (3rd ed. Revised 1987) is the manual of the
American Psychiatric Association used by VA prior to November
7, 1996, for diagnostic criteria for mental illness. See
38 C.F.R. § 4.125 (1996). The GAFs noted on the VA
examinations are consistent with considerable and not with
severe social and industrial impairment. 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1996).
The most salient feature of the extensive outpatient records
is that the veteran suffers alterations in her symptoms
within a fairly narrow range, sometimes somewhat better,
sometimes somewhat worse. There is not evidence of steadily
increasing severity of symptoms. There is not evidence that
at some point during the documented treatment she obtained a
significant increase in symptoms and a plateau at that
increased level. The overall disability picture is
essentially stable within an identifiable range. The
outpatient records contrast with her statements at hearing
about the severity of her condition. While she testified in
February 1996 to long periods of lost time from work due to
her symptoms, weekly and bi-weekly therapy notes reflect
anxiety and depression, but not the extent of disruption of
work reported in testimony. The nearly continuous record of
treatment is more consistent with her testimony that she
functioned without panic or depression while at work, and
suffered her symptoms primarily in the area of interpersonal
relations outside of work. Her November 1997 letter to her
employer indicated her medical problems did not impair her
ability to work. The letter is not strong evidence that the
accommodation she sought was for mental illness, as she did
not identify the medical reason for seeking to alter her
schedule. She furthermore cited the need for physical
therapy as one of the types of treatment for which she sought
adjustment in her work hours, which tends to show that her
request was motivated in part by physical, rather than
psychiatric, reasons.
The record indicates that multiple factors have contributed
to changes in employment, including ethical disputes,
disputes over the application of the Baker Act, which the
Board deems a matter of professional judgment within the
veteran's expertise as a LCSW, and contract disputes having
nothing to do with her service-connected disability. Also,
significantly, the extensive outpatient record appears to
show that problems at work preceded increase in psychiatric
symptoms. Thus, the evidence does not support the conclusion
that industrial impairment is caused by the service-connected
psychiatric disorder, but rather that employment difficulties
exacerbate the symptoms.
The veteran submitted a record of sick leave for 1995.
Although her implication apparently is that all of the leave
taken was attributable to her psychiatric illness, the Board
does not draw that inference from the record, and the record
shows other medical matters during that year that must have
accounted for some of the leave. Specifically, available VA
outpatient records for 1995 showed urology and gynecology
treatment during daytime hours. The Board finds the sick
leave report not probative evidence that the veteran's
psychiatric illness caused disruption in her work in 1995
equal to the total number of hours of sick leave the veteran
used.
The Vet Center counselor wrote in October 1999 that the
veteran had a poor prognosis for rejoining mainstream
society. It is unclear just what that means, or what
societal mainstream the veteran is not in. As recently as
February 2000, she was in a significant interpersonal
relationship. As recently as March 2000, she had obtained
such professional advancement as to have supervisory
responsibilities in her job. These attainments satisfy the
Board's notions of functioning in the mainstream of society.
The October 1999 letter was a prognosis; the evidence is that
it was incorrect.
In sum, the preponderance of the evidence is against finding
severe impairment in ability to maintain effective social
relationships or in the ability to obtain and retain
employment at any time under review in this case. Under the
old rating criteria, a rating higher than 50 percent must be
denied. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
When the new rating criteria are applied to the evidence, the
evidence does not show severe impairment in most areas of
functioning due to suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); or inability to establish and maintain effective
relationships.
The suicidal ideation appearing in the record, in light of
consistent and unvarying assertions that there is no genuine
plan or intent, does not evidence that such ideation causes
severe impairment in any of the key areas of consideration.
The Board finds the veteran's report to the February 1998 VA
psychologist of past suicidal gesture not credible, because
of its frank inconsistency with the numerous reports of
ideation without plan or intent. There are no obsessional
rituals. Speech has never been shown to be illogical,
obscure, or irrelevant. Depression, and possibly panic
(although generally described as anxiety) is intermittent,
not nearly continuous. The veteran's employment record is
not consistent with the level of effect on the ability to
function independently, appropriately and effectively that
warrants a 70 percent rating. The reports of irritability
and feelings of rage are not accompanied by periods of
violence, i.e., they do not amount to the severity that would
indicate severe impairment. There is no evidence of spatial
disorientation, neglect of personal appearance or hygiene.
There is evidence of difficulty in adapting to stressful
circumstances, including work, but not to the level of severe
impairment. The Board does not construe the difficulty in
maintaining intimate or romantic relationships as evidence of
inability to maintain effective relationships.
The level of impairment that the evidence shows the veteran
suffers in stressful settings, such as work, better comports
with occupational and social impairment with reduced
reliability and productivity due to such symptoms as impaired
judgment, by the veteran's assertion, disturbances of
motivation and mood, and difficulty in establishing and
maintaining effective work and social relationships that is
of a lesser degree than inability to maintain effective
relationships. The GAF score of 50, discussed above, were
unchanged in the Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1994), which applies in conjunction with
the new rating criteria. 38 C.F.R. § 4.125(a) (1999). The
Board interprets the GAF scores in the record the same under
the new criteria as under the old.
The preponderance of the evidence is against finding
entitlement to rating higher than 50 percent from the
effective date of the new criteria. 38 C.F.R. § 4.130,
Diagnostic Code 9411 (1999).
Comparing the old to the new criteria shows that neither is
of greater benefit to the veteran, looking at the veteran's
disability in relation to its entire recorded history,
38 C.F.R. § 4.1 (1999), from the point of view of the veteran
working or looking for work, 38 C.F.R. § 4.2 (1999), and in
regard to her ability to function under the ordinary
conditions of daily life including employment. 38 C.F.R.
§ 4.10 (1999).
The veteran has asserted that her service-connected
psychiatric disorder has caused her to resign jobs and take
excessive sick leave. Regulation provides for submission to
appropriate VA authority for extraschedular rating when it is
not practical to apply the rating schedule to assess the
average impairment in earning capacity due to a service-
connected disability because of an exceptional or unusual
disability picture due to marked interference with employment
or frequent hospitalization. 38 C.F.R. § 3.321(b)(1)
(1999); see Floyd v. Brown, 9 Vet. App. 88 (1996). The Board
finds no exceptional or unusual disability picture in this
case, and referral to appropriate VA authority for
extraschedular rating is not warranted.
ORDER
A disability rating in excess of 50 percent for post-
traumatic stress disorder is denied.
J. SHERMAN ROBERTS
Veterans Law Judge
Board of Veterans' Appeals